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1997 Supreme(Gau) 30
GAUHATI HIGH COURT
D.N.Chowdhury, V.Dutta Gyani, JJ.
Bijoy Kumar Paul -Appellant
Versus
State of Meghalaya and Ors. -Respondent
Writ Appeal No. 137 of 1997
Decided On : 27-02-1997
P.K.Roy, D.Majumdar, B.Dutta, B.K.Das
The government's action in not regularising the appellant's service was arbitrary and violative of Articles 14 and 16 of the Constitution of India, as it disregarded its own reservation policy by appointing persons in excess of the reservation quota.
Headnote:
RESERVATION POLICY - ARTICLE 16(4) - ARTICLE 14 - ARTICLE 335 - ADEQUATE REPRESENTATION - REASONABLE LIMITS - EXCESSIVE RESERVATION - VIOLATION OF EQUALITY - REGULARISATION OF SERVICE - RECOMMENDATION OF PUBLIC SERVICE COMMISSION - BREACH OF DUTY TO ACT FAIRLY.
Fact of the Case:
The appellant, a Subordinate Engineer Grade I (Civil), challenged the dismissal of his petition seeking regularisation of his service based on the recommendation of the Meghalaya Public Service Commission (MPSC). The MPSC had recommended the appellant for regularisation, but the government did not regularise his service, citing the reservation policy.
Finding of the Court:
The court held that the government's action in not regularising the appellant's service was arbitrary and violative of Articles 14 and 16 of the Constitution of India. The court found that the government had disregarded its own reservation policy by appointing persons in excess of the reservation quota, and that this action was in breach of its duty to act fairly.
Issues: 1. Whether the government's action in not regularising the appellant's service was arbitrary and violative of Articles 14 and 16 of the Constitution of India? 2. Whether the government had disregarded its own reservation policy by appointing persons in excess of the reservation quota?
Ratio Decidendi: 1. The court relied on the Supreme Court's decision in Indra Sawhney etc vs. Union of India & others, which held that reservation under Article 16(4) should not exceed 50% and that the reservation policy should be exercised reasonably and fairly. 2. The court also relied on its own decision in Writ Appeal No.243 of 1995, which held that if suitable candidates for filling up the reserved vacancies are not available from the respective classes, then such vacancies would be available to others.
Final Decision: The court allowed the appeal and set aside the impugned judgment and order of the Single Judge. The court directed the government to regularise the appellant's service in conformity with the recommendation of the MPSC.
The appeal is directed against the judgment and order dated 22.5.95 passed by the learned Single Judge in Civil Rule No.17 (SH) of 1991 dismissing the petition of the writ petitioner, appellant herein.
2. The appellant/petitioner is working as Subordinate Engineer Grade I (Civil) in the Public Health Engineering Department, under the Government of Meghalaya since 1987. The Meghalaya Public Service Commission, the respondent No.3 called 107 (one hundred seven) candidates for interview. Interview was duly held 0n the 14th, 15th, 16th, 17th, 21st, 22nd, 23rd March, 1987 and seventy one candidates appeared in the interview. The Commission (respondent No. 3) upon assessment of the performance of the candidates found 40 (fourty) candidates suitable for the posts in order of merit vide communication No.MFSC/D/34/187-88/58 dated 29.3.89 issued by the then respondent No.3. The name of the petitioner appeared at serial No.21. The appellant/petitioner moved the High Court seeking a direction for regularisation of his service in pursuance of the recommendation of the respondent No.3. The learned Single Judge turned down the plea of the appellant/petitioner and dismissed the petition.
3. The respondent No.2 placed on record its affidavit at the appellate stage. It has been stated by the respondent that only those were appointed from the select list who were covered by the reservation policy of the State Government. The respondent also asserted in its affidavit that an interview was also held on 24.5.96 by the respondent No.3, me Public Service Commission for filling up the 66 (sixty six) vacancies of the Subordinate Engineers Grade I (Civil) under the Public Health Department. The PSC found 65 (sixty five) candidates as suitable and accordingly prepared a select list in order of merit. The name of the petitioner appeared at serial No,51 of the 1996 list. According to the policy of reservation as professed by the Government 40% of the vacancies are reserved for the members of the Khasi and Jaintia Community, another 40% of the vacancies are reserved for the Garo Community and 5% are resented for Scheduled Castes/Schecluled Tribes Communities of Meghalaya. The affidavit disclosed that from the said merit list the first ten vacancies were filled up in order of merit. In the absence of particulars, we could not ascertain as to whether the aforesaid ten candidates also belonged to the reserved quota. It was also revealed from the affidavit that apart from appointing 26 (twenty six) persons from the reserved Khasfquota 15 (fifteen) more candidates belongs to the Khasi Jaintia Tribes were appointed from the remaining quotas of the Garo Tribes, All the 11 (eleven) members of the Garo Communities as per the recommendation of the MPSC against the 26 vacancies earmarked for the said community were absorbed and the balance of Garo quota was filled up by the candidates belonging to Khasi and Jaintia Community. According to the respondent No.2 that since the open quota (unreserved) 10 (ten) were filled up on merit by the first ten candidates, there was no further scope for absorbing candidates from the member of the general community (other than the reserved quota).
4. The germ of reservation of appointments or posts in favour of any backward class of citizens is emanated from the great equality clause of Our Constitution embodied in Article 16 of the Constitution of India. Article 16(1) is an extension of Article 14. Article 16 (4) is an enabling provision, clothing the State with a discretionary power to make reservation of appointment in favour of backward classes of citizens who are not adequately represented either numerically or qualitatively in the services of the State. It is indubitably an affirmative action to alleviate the inequality. Clause (4) of the Article 16 however speaks of adequate representation and not of proportional representation. The discretion reposed on the State under clause (4) like all other discretions power
